Lawmaker Suggests Police Internal Affairs Functions Be Transferred To AG's Office

 

As reported by nj.com, the internal affairs functions of every law enforcement agency in New Jersey would be transferred to the Attorney General’s Office under a bill proposed by an assemblyman, who contends politics and bias too often creep into investigations when police departments police themselves.

Assemblyman Peter Barnes III (D-Middlesex), the son of a retired FBI agent, said he has long considered such a measure but decided to move forward after a two-part Star-Ledger series on the troubled Edison Police Department. Part of the newspaper’s series dealt with the internal affairs unit. Barnes, a former councilman, said that when police officers investigate colleagues, they can be too easily swayed by preconceptions about fellow cops.

“When you have officers investigating their own, it can lead to two divergent problems,” Barnes said. “You can have officers whitewashing legitimate claims because of friendships and relationships that develop. You can also have retaliatory-type claims. There might be a grudge or people vying for promotions, and one of them is in IA. I’ve never felt that was a good idea.”

The measure, which Barnes said he will introduce next month, calls for the creation of a new unit within the Attorney General’s Office and the hiring of investigators to staff it. The assemblyman said he knows the proposal will be controversial and, initially, costly. But, he contends that by centralizing IA functions, local and county internal affairs officers would be free to work in other areas of their departments, bolstering public safety. Most important, he said, it would strengthen the integrity of the internal affairs process, insulating it from intimidation or coercion.

Law enforcement officials called Barnes’ idea interesting, but said it would be very difficult to implement. New Jersey has some 30,000 police officers who work in more than 400 law enforcement agencies, said Raymond Hayducka, president of the New Jersey State Association of Chiefs of Police. That’s a lot of ground to cover for a single agency he said.

By statute, internal affairs investigations also have time constraints. Once investigators have developed enough information to substantiate a claim of wrongdoing, officers must be charged administratively within 45 days. Under those rules, the new unit could not afford a backlog of investigations, Hayducka said, adding he would still be interested in reviewing the measure.

ACLU Pokes Hole In Attorney General's Internal Affairs Complaint Forms For Police

 

As reported by nj.com, after rolling out tougher rules in May for police departments’ internal affairs units, State Attorney General Paula Dow has released new reporting forms that omit a crucial question: How many complaints about police officers are being investigated at the end of each year? The new forms published Tuesday don’t require police departments to list the number of open investigations at year’s end, raising concerns among rights’ advocates that cases will continue to fall off the books, as they have for years.

“The intention with these forms is to provide a snapshot of accountability,” Peter Aseltine, a spokesman for Dow, said yesterday. “That reporting was never intended as a means to track individual cases.” But Deborah Jacobs, executive director of ACLU-NJ, who initially supported Dow’s proposals until she saw the finished product on Tuesday, called it a “huge step backward.” She added, “It’s the more serious internal affairs complaints that take longer to investigate.”

Critics said it was the second time this month that Dow limited access to public data. Earlier this month, she restricted information on overtime compensation for state law enforcement officers. Her office said today she was only codifying a set of legal precedents dating to 2002. Jacobs said there was another problem as well. “We need an attorney general who will stick around for more than a year or two and dig in to fix the serious ongoing police practices issues that the ACLU has been raising for years,” she said.

State and local officials said that despite the omission on the new forms, police departments will have no problems policing their own. Critics said it leaves members of the public out of the loop if they want to track important data that has been consistently spotty for the last decade.

The Attorney General’s Office said that under Dow’s new system, county prosecutors have a more prominent role monitoring internal affairs complaints, analyzing all the numbers and squaring away any discrepancies. Previously, counties have not carried out those duties. The forms in question allow the public to review police departments’ data.

Jacobs did praise other parts of Dow’s new policies. Police departments must now track complaints by officer to watch for patterns; they must devote more resources to training; and they must publicize summaries of the most serious complaints, though they don’t have to name officers. “It is absolutely critical that law enforcement agencies investigate allegations against officers thoroughly and fairly, and that we provide the public with meaningful data about the complaints,” Dow said in May.

Termination of Internal Affairs Officer Who Disclosed Pending Investigation Affirmed

On June 1, 2010, the Appellate Division decided In the Matter of Michael Sottilare, Department of Corrections Hudson County, Docket No.: A-4761-08T3. In the case, Michael Sottilare appealed from a Civil Service Commission (“Commission”) decision affirming the Hudson County Division of Personnel’s termination of his employment with the county’s Department of Corrections.

Sottilare, after more than ten years as a corrections officer, received four preliminary notices of disciplinary action arising from events commencing on November 30, 2005 and continuing through December 23, 2005. The final incident resulted in his termination.

While on leave due to an on-the-job injury, Sottilare was videotaped working at a construction site in contravention of Hudson County’s policy requiring persons on leave to remain at home unless they are receiving medical care or purchasing medication. A disciplinary charge of malingering issued as a result. Shortly thereafter, on December 23, 2005, Sottilare made a telephone call to the New Jersey Policemen’s Benevolent Association Local 109 office in order to obtain legal representation for the hearing scheduled on the malingering charge and to request a postponement. Officer Shaara Marie Green, then the Vice President of PBA Local 109, answered the phone call.

When Green testified before the Office of Administrative Law, she said she told Sottilare that the union could not provide him with legal representation because the Internal Affairs Unit (“IAU”) officers were no longer members. Sottilare had been assigned to IAU since 1995 or 1996. Green also told Sottialre to obtain his own attorney, and gave him the name of the person that his attorney should contact in order to request the postponement.

Green also testified that after she told Sottialre that PBA Local 109 could not provide him with counsel, Sottilare informed her that she was under investigation by IAU. Sottialre explained to Green that surveillance was being initiated because she was reportedly living with an ex-inmate in violation of departmental policy. 

Green immediately telephoned Ricardo Alves, Sottilare’s supervisor at IAU, to report the conversation. When Alves testified, he confirmed that he received a call from Green about the complaint that had been filed against her and that Sottilare had told her that she was the subject of an IAU investigation. Deputy Warden David Krusznis confirmed that Green was being investigated and said that disclosure of the existence of a pending IAU investigation is a violation of departmental policies and procedures, as well as of guidelines promulgated by the Office of the Attorney General.

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SID Union Accuses NJDOC of Preventing, Blocking Prison Investigations

 

As reported in the Star-Ledger on November 26, 2009, according to a lawsuit filed by the union representing prison investigators, senior officials at the Department of Corrections are illegally blocking internal investigations into bribery, cell phone smuggling and gang activity. In short, the lawsuit alleges that Correction officials shut down ongoing probes or prevented investigations from even beginning.

For example, the lawsuit alleges that investigators were told not to examine whether a prison employee was hiding a cell phone, or if an inmate had “put out a hit” on people outside the prison system. Other alleged spike investigations included probes into prison employees who fired service weapons, once during an alleged off-duty bar fight. Allegedly, both files were marked “no action taken” by senior officials.

The union, Fraternal Order of Police Lodge 174, represents about 90 officers within the Department of Corrections’ Special Investigations Division. The union has previously clashed with the Department’s leadership on issues of tactics and resources. 

The Special Investigations Division has been controversial for its dual role in probing gang activity and handling internal affairs. Officials inside and outside of the Division say its dual role creates distrust within the Department.

Spokespeople for the Department of Corrections and the Attorney General declined to comment on the pending lawsuit. Please check this blog periodically to ascertain updates regarding this lawsuit as the same become available.

Discipline Regading Dissemination of Internal Affairs Documents Upheld

 

In Division of State Police v. In the Matter of Detective Sergeant First Class Daniel Flaherty, Docket No. A-0257-07T20257-07T2, the Appellate Division addressed the validity and ultimate imposition of disciplinary charges lodged against a Detective Sergeant of the New Jersey State Police. The appeal arose out of disciplinary charges filed by the New Jersey Division of State Police (“Division”) against Detective Sergeant First Class Daniel Flaherty, charging him with: (1) disseminating Division documents without proper authorization; (2) behaving in an official capacity to the personal discredit of a member of the State Police or to the Division; and (3) willfully disobeying a lawful verbal or written order.

The underlying facts of this case were not substantially in dispute. In 2001, Flaherty filed an age discrimination complaint with the New Jersey State Police Equal Employment Opportunity/Affirmative Action (“EEO/AA”) intake unit. He alleged that since 1995, the State Police had denied him numerous specialist positions because of his age. The EEO/AA assigned Lieutenant Patrick Reilly to investigate his claim. After two years, in which the allegations still had not been resolved, the EEO/AA replaced Reilly with DSFC Kevin Rowe.

On May 5, 2003, Flaherty filed a New Jersey State Police Reportable Incident Form alleging “culpable inefficiency” against Reilly. Pursuant to a Division policy regarding non-disclosure of confidential internal investigations, the Office of Professional Standards (“OPS”) denied his request to access the file regarding his complaint against Reilly.

The following month, the State Police administratively closed Flaherty’s complaint file against Reilly and transferred the matter to the Attorney General’s EEO/AA section. In a letter dated September 24, 2003, a Senior Deputy Attorney General informed Flaherty that his claim against Reilly could not be substantiated. 

Thereafter, on May 31, 2003, the Division assigned Flaherty to the OPS, which was then called the State Police Internal Affairs Investigation Bureau. Pursuant to Division of Internal Affairs policies and procedures, “[t]he nature and source of internal allegations, the progress of internal affairs investigations, and the resulting materials are confidential information. The contents of internal investigation case files shall be retained in the internal affairs unit and clearly marked as confidential.” Notwithstanding these provisions, internal investigation files can be released in certain enumerated circumstances.  As such, Flaherty executed a confidentiality agreement which provided the dissemination of all confidential information and/or documents.

In a letter dated February 20, 2004, the Department of Law and Public Safety found that Flaherty’s age discrimination claims could not be substantiated. In his appeal to the Department of Personnel, Flaherty questioned the manner in which the State Police and the Attorney General’s office investigated his

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ATTORNEY GENERAL'S GUIDELINES MUST BE FOLLOWED IN INTERNAL AFFAIRS INVESTIGATION

 

In the matter of O’Rourke v. City of Lambertville, Docket No. A-0481-07T3, the Defendants appeal the trial court’s decision: (1) reversing the Lambertville City Council’s decision removing Plaintiff, Michael O’Rourke, from his position as a police officer; (2) reinstating Plaintiff to his position; and (3) denying their motion for reconsideration. Defendant, Bruce Cocuzza, is the city’s civilian police director. Plaintiff, a sergeant first class, was the police department’s Terminal Agency Coordinator (“TAC”) for the National Crime Information Center (“NCIC”) system, which contains a wide array of law enforcement information. 

The city charged Plaintiff with conducting unauthorized and improper employee background investigations, in defiance of Cocuzza’s direct order, and engaging in conduct subversive to the good order and discipline of the department in doing so. At the disciplinary hearing, Cocuzza testified that he and Plaintiff were discussing the temporary transfer of an employee from city hall to the department when Plaintiff told him that the employee would have to submit to a background check or be fingerprinted for security purposes. Cocuzza said he told Plaintiff that no action should be taken until Cocuzza received written authorization from “somebody in authority” and spoke with the city attorney regarding same. Later, Cocuzza learned Plaintiff had performed background investigations of five civilian employees of the department, including Cocuzza, without authorization.

After the officer assigned who was assigned to the department’s internal affairs unit declined to investigate because of his long-term social relationship with Plaintiff, Cocuzza decided to conduct the investigation himself. In his report, Cocuzza wrote that Plaintiff had been insubordinate and that his actions constituted a serious breach of discipline and a flagrant abuse of authority. 

Plaintiff testified that he performed the checks under his authority as TAC officer, indicating that under the State’s security policy anyone with access to the NCIC system had to have a background check and fingerprints taken. He also stated that he understood Cocuzza to mean that he should not ask anyone for their fingerprints, which he did not do. He did concede that he did criminal checks on five employees, including Cocuzza.

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Internal Affairs Records and Reports May Be Released Subject to Redaction

In the case of Spinks et al. v. The Township of Clinton et al., 52-2-1684, The Township of Clinton sought to bar the release of an internal affairs investigation of the police department that was submitted to the trial court as part and parcel to a summary judgment proceeding.  The Township argued that the disclosure of these types of documents are forbidden by law and under common law principles of fairness, the township's interest in confidentiality  outweigh the public's interest in accessing the records. 

In making this decision the trial court applied the balancing test articulated in the matter of Hammock v. Hoffman-La Roche Inc. 142 N.J. 356 (1995).  After applying the balancing test that weighs the township's interest in confidentiality  versus the public's interest in accessing the records, the trial court held that the records could be released but only after all personal information was redacted from the records and with held.  In examining this issue on appeal, The Superior Court of New Jersey, Appellate Division, remanded the case to the trial court for further redaction of the records for confidentiality purposes that was consistent with the trial court's previous ruling.

This case stands for the principle that in certain circumstances internal affairs reports and records can be released to the public, however only after the court conducts an "in camera" review of the records and makes a decision concerning the redaction of personal information that will be necessary to preserve privacy.  Therefore, if you are looking for confidential records and reports that were produced by internal affairs, you may be able to get your hands on them in certain circumstances.